Citation Nr: 1753626	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO. 12-03 063	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for a right lower extremity disorder, to include as secondary to the service-connected degenerative disc disease (DDD) of the lumbar spine.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Neal, Associate Counsel





INTRODUCTION

The Veteran served on active duty from September 2003 to April 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction over the matter currently rests with the Pittsburgh Foreign Cases Office (Foreign Office) in Pittsburgh, Pennsylvania.

In May 2014, the Veteran failed to appear, without explanation, for a Board hearing. The RO sent the Veteran multiple letters notifying him of the hearing. He has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. See C.F.R. §20.702(d) (2016).

In July 2014, the Board remanded the matter for further development. That has been accomplished, and the matter has been returned for further appellate consideration. See Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDING OF FACT

The competent and credible evidence of record does not establish a diagnosis of a right lower extremity disorder at any time during the appeal period.


CONCLUSION OF LAW

The criteria for a grant of service connection for a right lower extremity disorder, to include as secondary to the service-connected DDD of the lumbar spine, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) defined VA's duty to notify and assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

There is no indication in this record of a failure to notify. Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). In April 2008, the RO mailed the Veteran a VCAA letter detailing the evidentiary requirements of a service connection claim, the evidence that he should send to VA, and VA's responsibilities to assist him, including with respect to secondary service connection claims. Furthermore, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. §5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)).

With regard to the duty to assist, the Veteran's service treatment records (STRs) and VA treatment records have been secured. Pursuant to the Board's July 2014 remand, the RO sent a letter to the Veteran requesting sufficient information and authorization to obtain treatment records from his private treatment providers. See July 2016 correspondence. The RO did not receive a response from the Veteran. The Board emphasizes that "the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

In addition, the Veteran was afforded a VA medical examination in August 2016. The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining treatment records and a VA examination, has been met. 38 C.F.R. § 3.159(c)(4) (2017).

Legal Criteria & Analysis

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 

Service connection for certain chronic diseases, including peripheral neuropathy, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In cases of chronic diseases, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).

Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). To prevail on this basis, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Allen v. Brown, 8 Vet. App. 374 (1995). 

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); & Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Once evidence is determined to be competent, the Board must determine whether such evidence is credible. Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.  
The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran contends that he has a right lower extremity disorder that developed in service as a result of the service-connected DDD of his lumbar spine. See March 2008, VA Form 21-526, Veterans Application for Compensation and/or Pension; December 2016 Statement of Accredited Representative in Appealed Case.

According to STRs, the Veteran underwent an enlistment examination in February 2003. See February 2003 Report of Medical Examination. A clinical evaluation found that his lower extremities and feet were normal.

In a January 2007 health assessment, the Veteran complained of weakness as well as numbness or tingling in the hands or feet. See January 2007 post-deployment health assessment. Later, he reported progressive back pain with numbness or pain in the right hip and leg. See February 2007 report of medical assessment. 

A January 2008 physical examination found normal movement of all extremities. See January 7, 2008, health record entry. A following examination recorded normal muscle strength of the right leg muscles and no decreased response to tactile stimulation of thigh, knee, leg, or foot. See January 14, 2008, health record entry. 

The Veteran underwent a separation examination in February 2008. See February 2008 health record entry. He reported numbness or tingling, but denied foot trouble or impaired use of the legs or feet. Id.

Following his separation from service, the Veteran submitted to a VA medical examination. See May 2008 Compensation and Pension Examination Note. He reported back pain that radiated into the muscles of the inside of the right leg during service. The examiner gave a diagnosis of "groin/hip pain" with decreased lower extremity strength. Id. However, the examiner also noted that there was no evidence of sensory or motor loss of the extremities. A subsequent VA examination also found normal right leg muscle strength and sensation of the lower extremities. See June 2008 Compensation and Pension Examination Note. 

In a July 2008 rating decision, the RO granted service connection for DDD of the lumbar spine.

The Veteran visited his VA provider for an annual physical in October 2008. See October 2008 Annual Physical Examination Note. A neurology screening was negative for numbness, burning, tingling, or pain in the extremities. 

Most recently, in August 2016, the Veteran underwent a VA examination of his back and peripheral nerves. See August 2016 Back Conditions Disability Benefits Questionnaire; August 2016 Peripheral Nerve Conditions Disability Benefits Questionnaire. According to the examiner, muscle strength and reflexes of the right knee, ankle, and great toe were normal. Sensation to light touch of the right thigh, knee, lower leg, ankle, foot, and toes was also normal. The examiner noted no evidence of radicular pain or other signs or symptoms due to radiculopathy. In addition, the peripheral nerve examination found no evidence of paralysis in any of the nerves of the right lower extremity. The lower legs also showed a normal range of motion (ROM). In her report, the examiner determined that there was no current evidence of a right lower extremity condition. The examiner concluded that the Veteran's claimed condition was less likely than not incurred or caused by his service or proximately due to or the result of a service-connected condition.

At the outset, the Board notes that the Veteran's STRs are silent with respect to a diagnosis of a lower right extremity disorder. Although there were reported instances of numbness or pain in the right leg, in-service physical examinations, including the February 2008 separation examination, did not note any lower right extremity condition or pain or limitation of use of the right leg. As stated above, there must be a showing of chronicity to support a claim of service connection. 38 C.F.R. § 3.303(b). Further, there is no competent and credible evidence of record of a diagnosis of a right lower extremity disorder within the year following the Veteran's discharge from active service. While the May 2008 VA examination noted decreased lower extremity strength due to pain in the groin or hip, the finding was based on the Veteran's subjective reports. The examiner found no objective evidence of sensory or motor loss of the right leg warranting a relevant diagnosis. A physical examination the following month also found normal right leg muscle strength and sensation. Therefore, service connection for a lower right extremity disorder cannot be presumed under 38 C.F.R. § 3.309(a). As such, the Veteran's claim for lower right extremity disorder must meet the criteria for general service connection claims. 38 C.F.R. § 3.303.

Upon further review of the record, the Board finds that the Veteran does not have a current right lower extremity disorder that is either caused by, or related to, his active service or proximately due to the service-connected DDD of his lumbar spine. According to the August 2016 VA medical examination, the Veteran did not present symptoms of a right lower extremity condition. Muscle strength and sensation of the right leg was found to be normal. There was also no evidence of radiculopathy or peripheral neuropathy. Accordingly, the examiner found that the Veteran did not have a diagnosis of a right lower extremity disorder. Other treatment records during the period of appeal also do not reflect a diagnosis for a right lower extremity disorder. There is no evidence of record to doubt the credibility of any of the Veteran's medical providers or examiners. The Board acknowledges the Veteran's contention that he has a right lower extremity disorder related to the service-connected DDD of his lumbar spine. However, the Board does not find the Veteran, as a lay person, is competent to establish a diagnosis for a right lower extremity disorder. See Layno v. Brown, 6 Vet. App. at 469. Therefore, the only competent etiological opinion of record is the August 2016 VA examination. 

Congress has specifically limited service connection to instances where there is current disability that has resulted from disease or injury. See 38 U.S.C.A. § 1110. In the absence of a current disability, the analysis ends, and the claim for service connection for a right lower extremity disorder cannot be granted on a direct or secondary basis. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With no competent evidence of a diagnosis during the appeal period, the Board finds that the criteria for a grant of service connection for a right lower extremity disorder, to include as secondary to the service-connected DDD of the lumbar spine, have not been met.

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not helpful to the Veteran. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to service connection for a right lower extremity disorder, to include as secondary to the service-connected DDD of the lumbar spine, is denied. 




____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs